Materials for Lectures on Judicial Precedent

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©J Ayamunda 2020

The judicial role in making legal rules.

 The power of the judges to create new crimes (DPP V Shaw)

 The problem of the conflict between written law and moral feelings of the public

 The role of the judicial precedent - thus doctrine based on general principles that
once a court has stated the legal position in a given situation then the same
decision will be reached in future cases where material facts are the same

 Whether or not a judge is bound depends on which court gave the previous
decision. Hence while a lower court must follow the decision of the superior
court, a superior court is not bound by a previous decision of the inferior one

 As regards the practice re judicial precedent in Kenya the rules were laid down in
Dodhia v Grindlays Bank … they show substantial leeway for judge made law
especially regarding the superior courts

 The role of the lower courts – they have persuasive influence though no binding
precedents

 It is the ratio decidendi (reason for decision) that is binding and not obiter dicta,
therefore more flexibility regarding the following:

 Precedents need not be followed indefinitely

 Can be reversed on appeal
 Disapproved by later court usually by the way of the obiter
  Distinguished where material facts different
 Not followed e.g. where rapid change of circumstances occurs

Re advantages & disadvantages

 Legislation should express the intention of Parliament (because parliament is

elected by and accountable to the people)
 Separation of powers – Parliament legislates, judiciary interprets
 Judges may not be as well-equipped as members of Parliament
 Disadvantages of precedent e.g. lack of certainty or predictability e.g. once a
precedent not always one
 The advantages of statutes e.g. fairly certain and predictable e.g. published
 Retrospective effect of precedent hence unfairness

Last thoughts

 Statute overrides judicial precedent

 Distinction between written and unwritten sources
 Statute is to written law as precedent is to common law
 Ordinary precedent operates alongside statute if there is no conflict